HomeMy WebLinkAbout08-31-2023_Order After Hearing - 4615 Brighton RoadFinance Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3141 PH | 949 644-3073 FAX newportbeachca.gov
October 4th, 2023
PMC CONSULTING
76 Mercantile Way #721
Ladera Ranch, CA 92694
Re: Three Year Construction Time Limit Extension Hearing Results
Dear Appellant:
Attached please find the Hearing Officer’s findings regarding your appeal of Three Year
Construction Time Limit Extension.
If you require further information, please call 949-644-3141.
Sincerely,
Evelyn Tseng Revenue Manager
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
BEFORE THE
ADMINISTRATIVE HEARING OFFICER
FOR THE
CITY OF NEWPORT BEACH, CALIFORNIA
IN RE 4615 Brighton Road APPLICATION FOR PERMIT EXTENSION (NBMC 15.02.095)
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Steven Graham Pacifico Date: August 31, 2023 Time: 1:20 p.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under building
permits issued for 4615 Brighton Road ("Subject Property") in the City of Newport Beach under
Section 105.3.4 of the Newport Beach Administrative Code (a locally amended version of the
California Building Code) as codified at Newport Beach Municipal Code ("NBMC") Section
15.02.095. Steven Graham Pacifico ("Hearing Officer"), sitting as the Hearing Officer under
NBAC Section 105.3.4, heard this matter on August 31, 2023, at 1:20 p.m. (the "Hearing"). The
Hearing Officer is a licensed attorney in the State of California and serves as Hearing Officer
under contract with the City of Newport Beach ("City"). Pursuant to NBAC Section 105.3.4, the
Hearing Officer shall hear and decide whether this application for extension should be granted,
conditionally granted, or denied.
2. The City is a charter city and municipal corporation existing under the laws of the State of
California. The City was represented at the Hearing by Tonee Thai, Chief Building Official
("City Representative"). Also in attendance from the City was Principal Building Inspector
Steven Lane.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
3. Byran Munzell, owner's representative, Robert Dougherty, a superintendent of the project, Scott
Demarois, a superintendent of the project, and Bill Coughlin, a permit consultant, appeared in
support of the application for an extension of time. Collectively, the owner's representative
project superintendents and the permit consultant are referred to as the "Applicant."
4. A member of the public, Christine Lawry, was present at the Hearing and asked how the project
would affect the neighboring properties.
5. The following Findings of Fact, Conclusions of Law, and Decision and Order are based on the
evidence presented during the Hearing.
6. The Hearing Officer considered the testimony of all witnesses at the Hearing and all documents
made part of the administrative record. The mere fact that a witness's testimony or document
may not be specifically referred to below does not and shall not be construed to mean that said
testimony or document was not considered.
7. Pursuant to the Administrative Hearing Rules and Procedures of the City of Newport Beach, the
Hearing was digitally recorded.
8. The documents presented to the Hearing Officer during the hearing are attached hereto as
Exhibit A and form the administrative record of the hearing.
ISSUES
8. Pursuant to Section 105.3.4 of the NBAC, the issue to be determined by the Hearing Officer is
whether to grant, or conditionally grant, up to a one hundred and eighty (180) calendar day
extension, based on a finding that either (i) special circumstances warrant an extension of time
or (ii) the failure to meet the time limit was caused by circumstances beyond the property
owner's, applicant's or their contractor's control.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
9. This matter is before the Hearing Officer consistent with Section 105.3.4 of the NBAC.
10. The City of Newport Beach adopted the 2019 California Building Code by reference under
Ordinance No. 2019-17 as the Newport Beach Administrative Code, codified at Newport Beach
Municipal Code Section 15.02.010, which reads in part, "The City Council adopts and
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
incorporates by reference, as though set forth in full in this section, Chapter 1, Division II of the
2019 Edition of the California Building Code as published by the International Code Council."
11. The City of Newport Beach adopted certain additions, amendments, and deletions to the 2019
California Building Code, pursuant to its authority under California Health and Safety Code
Section 17958.5.
12. One such addition is the addition of Sections 105.3.3, 105.3.4, and 105.3.5 to the Newport Beach
Administrative Code, codified at Newport Beach Municipal Code Section 15.02.095.
Section 105.3.3 reads:
"For any one-unit or two-unit dwelling for which a tentative and final
tract map is not required, the maximum allowable time to complete
construction for any work that requires a building permit including,
but not limited to, any construction, reconstruction, rehabilitation,
renovation, addition(s), modification(s), improvement(s), or
alteration(s), shall be limited to three (3) years, unless an extension is
granted in accordance with Section 105.3.4.
For building permits issued on or after June 1, 2019, the time limit to
complete construction shall begin on the date of issuance of the first
or original building permit. For building permits issued prior to June
1, 2019, the time limit to complete construction shall be three (3)
years from June 1, 2019.
Final inspection and approval of the construction work by the City
shall mark the date of construction completion for purposes of Section
15.02.095. Time limits set forth herein shall not be extended by
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
issuance of a subsequent building permit(s) for the same project."
(emphasis added).
13. Permit No. X2015-3753 was issued by the City of Newport Beach on October 4, 2016. Permit
XR2023-0545 was an expansion of scope permit to install radiant floor heating systems.
Collectively, all original, expired, and replacement permits are referred to as the "Permits." The
Permits were set to expire under NBAC 105.3.3 on June 1, 2022.
14. The City implemented a new permitting system in July 2022. The permit's extended three-year
construction limit expiration date, June 1, 2023, did not transfer over to the system. As a result,
subsequent expiration notification was not sent, and permit status was not updated until the error
was corrected by City staff. Notice of pending three-year construction limit expiration was sent
on March 30, 2022.
15. The Permits may be extended up to one-year beyond the initial three-year deadline by
application to the City Building Official. (NBAC 105.3.4(1)).
16. The City's Chief Building Official granted an extension for a three-year construction time limit
on April 27, 2022, with an expiration date of June 1, 2023.
17. Section 105.3.4 provides that if a project is not completed within the timeframe authorized by
the Building Official, the property owner or their authorized agent may seek further extension
from the City's Hearing Officer. The property owner or applicant may seek two extensions from
the Hearing Officer which shall not exceed 180 days each. To grant the extension the Hearing
Officer must find that either (i) special circumstances warrant an extension of time or (ii) the
failure to meet the time limit was caused by circumstances beyond the property owner's,
applicant's or their contractor's control. Any approval of an extension should include conditions
to ensure timely completion of the project in a manner that limits impacts on surrounding
property owners. The Applicant filed a request for an extension with the City Hearing Officer
seeking an extension for the full 180 days possible under the code.
18. The City Representatives presented uncontroverted evidence that there has been consistent and
diligent progress made toward the completion of the project under the Applicant. The City
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
Representatives could not estimate how much additional time would be needed to complete the
project. City Representatives indicated that the scale of the project, a roughly 25,000 square foot
structure, and its proximity to cliffs overlooking the Pacific Ocean added to the project's
complexity, making the delays in project completion understandable. There was no objection
from the City Representatives to the Hearing Officer granting an extension from the City.
19. The Applicant, through testimony of Superintendent Dougherty, provided uncontroverted
evidence that the project has not ceased operation and has consistently moved towards
completion. Applicant, through testimony of Superintendent Dougherty, stated the circular
atrium and its location underground on the cliff's edge make the project very complex.
Additionally, Applicant indicated delays in project completion resulted from shipping delays
due to the COVID-19 pandemic and port delays in receiving shipments of stone and brass.
20. The Applicant, further stated that a change in the architect was another reason for the delay in
project completion.
21. Applicant, through the testimony of Superintendent Dougherty, denied causing any parking-
related issues to the neighboring properties as a result of ongoing construction. Applicant denied
causing excessive noise levels in violation of City code as a result of ongoing construction.
Permit consultant Coughlin indicated that the project is beyond the point of causing excessive
noise, and most of the remaining work is interior.
22. The Applicant anticipated completion of the project within 9-12 months. Superintendent
Dougherty indicated that eighty to ninety percent of the exterior stone is completed, and several
walls on the interior have been drywalled.
23. There was no testimony from the public at the hearing concerning the request for an extension.
DECISION AND ORDER
24. The Applicant has presented sufficient evidence to establish that "special circumstances warrant
an extension of time." The Subject Property's unique shape, size, geographical position, and
incorporation of various elements requiring custom fabrication warrant a special circumstance
for which a time extension may be granted.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
25. The Hearing Officer conditionally grants a 180-day extension and informed the Applicant that
if they sought another extension, evidence as to the completion of the exterior of the project
would be critical to determining whether any potential additional extension would be warranted.
26. Bearing in mind the impact on the neighboring properties, the Hearing Officer imposes the
following condition of approval on the grant of an extension:
a) Any employee, agent, or contractor of the project must comply with the City's parking
ordinance.
b) Any employee, agent, or contractor of the project must comply with the City's noise
ordinance.
c) Any employee, agent, or contractor of the project is permitted to work only during the
hours/days permitted by the City's Administrative Code.
27. Under NBAC 105.3.4 this decision is final and not appealable to any City body.
28. Any person aggrieved by an administrative decision of a Hearing Officer on an administrative
citation may obtain review of the administrative decision by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions as set forth in
California Government Code Section 53069.4. There may be other time limits which also affect
your ability to seek judicial review.
Dated: October 3, 2023 /s/ Steven Graham Pacifico
Administrative Hearing Officer